5.  The first and second applicants, Mr Andrzej Stankiewicz and Ms Małgorzata Solecka, were born in 1974 and 1970 respectively and live in Piaseczno-Józefosław and Kraków. The third applicant, Presspublica sp. z o. o. is a limited liability company having its registered office in Warsaw. The company is the publisher of the daily newspaper “Rzeczpospolita” where the first and second applicants worked as journalists.
6.  It appears that A.F., the chief executive of the Polish branch of M.S.D. Inc. (“M.S.D.”), a large pharmaceutical company, approached journalists of the daily newspaper “Rzeczpospolita”. He informed them on condition of anonymity that the company had received a proposal to “arrange” the placement of its drug on the list of refunded drugs in exchange for a bribe.
7.  On 12 May 2003 “Rzeczpospolita” published on the front and fourth pages an article entitled “Drugs for millions of dollars” (“Leki za miliony dolarów”), written by the first and second applicants. The subtitle read: “A pharmaceutical company asserts that the Head of the Private Office of the Minister of Health demanded a large bribe” (“koncern farmaceutyczny twierdzi, że szef gabinetu politycznego ministra zdrowia żądał dużej łapówki”).
8.  The journalists alleged that in the summer of 2002 W.D., the Head of the Private Office of the Minister of Health (Szef Gabinetu Politycznego Ministra Zdrowia) had demanded a bribe from representatives of a pharmaceutical company, offering in return his assistance in having a drug manufactured by the company placed on the list of drugs refunded within the framework of the national health care scheme.
9.  In the article, the applicants recounted the circumstances of two meetings which had taken place in Warsaw restaurants. They were attended by W.D., B.O. – director of a private osteoporosis clinic and W.D.’s friend, as well as two representatives of the pharmaceutical company – Ł.Z. and H.M.N. The meetings had been devoted to the plan to set up jointly, by the two companies, a network of osteoporosis clinics in Poland.
10.  The relevant parts of the article read:
“W.D., the Head of the Private Office of M.Ł. [Minister of Health], demanded a multi-million dollar bribe, offering his assistance in placing drugs on the list of refunded drugs – asserts foreign pharmaceutical company. W.D. rejects these allegations, and M.Ł. [the Minister] does not believe the version of events presented by the company. ...
“It is the first such obvious case of a corruption proposal which has happened to me” – asserts the representative of the company. W.D. admits that he twice met the representatives of the company, but denies that he demanded money from them. ...
Companies are keen to have their drugs placed on the list [of refunded drugs]. Why? Because the State pays part of their price so they are cheaper and more accessible to patients. It has been known for years that decisions concerning registration and placement of drugs on the list of refunded drugs were accompanied by “informal payments”. However, up to now the representatives of the pharmaceutical companies have never directly admitted that they were asked for a bribe. ...
According to the director of the pharmaceutical company, W.D. was trying to convince [them] that the osteoporosis clinic [of B.O.] was a serious project. ... “He [W.D.] offered us cooperation and demanded a one-off rapid payment of 1.5 million dollars and then annual payments of 1-1.5 million. Money was to be spent on “infrastructure””.
11.  The journalists sought comments from W.D. before the publication of the article. They put to him questions about his presence as a high-ranking State official at a business meeting between two companies. W.D. initially denied that he had participated in it. However, two days later he recalled that he had in fact participated in the second meeting. Contrary to his earlier assertions, he also stated that the issue of the list of refunded drugs had been discussed at the meeting but at the initiative of the pharmaceutical company. Eventually, W.D. admitted that his participation at the meetings had been inappropriate and stated that he had felt uncomfortable in his role of an official.
12.  The Minister M.Ł. refused to speak to the journalists. In his written statement he asserted that W.D.’s participation at the meetings had not been inappropriate and that he did not believe the version of events as presented by the pharmaceutical company.
13.  The journalists included in the article critical comments made by A.N., the Deputy Minister of Health responsible for drugs policy at the relevant time. A.N. stated that “W.D. was not authorised to participate at such meetings. It is not the role of the Head of the Private Office.” He also stated that “The Head of the Private Office should not be dealing with his business future in the course of carrying out his official duties”.
14.  The article also included a report on the career of W.D. entitled “Doctor, businessman, official”. It described, inter alia, his activities in the Mazowiecki branch of the Alliance of the Democratic Left (Sojusz Lewicy Demokratycznej) and his association with M.Ł., the future Minister of Health. On the recommendation of his party W.D. was appointed a member of the Board of the Mazowiecki Health Insurance Fund (Mazowiecka Kasa Chorych). After the parliamentary elections in the autumn 2001, won by the Alliance of the Democratic Left, W.D. together with the Minister of Health M.Ł. and the Deputy Minister A.N. became one of the most influential figures in the health ministry to the exclusion of three other deputy ministers. In September 2002 W.D. suddenly resigned from his position as the Head of the Private Office of the Minister.
15.  On 22 May 2003 W.D. lodged a civil action with the Warsaw Regional Court against the applicants for infringement of his personal rights. He demanded that the defendants publish an apology and further sought 500,000 Polish zlotys (PLN) in compensation for non-pecuniary damage. Subsequently, he modified the latter claim and sought instead 50,000 PLN to be paid to a charity. W.D. submitted that the information about the alleged request for a bribe in exchange for the placement of a drug on the list of refunded drugs had been misleading and untrue. The newspaper’s allegations against W.D. had been based on unverified information originating from the representatives of the pharmaceutical company.
16.  The applicants argued that the version of events presented in the article was credible and that they had observed due diligence in gathering information for their article. They further argued that the disclosure of the facts presented in the article had been justified in the public interest.
17.  During the proceedings, the Warsaw Regional Court heard several witnesses, including the participants at the business meetings, i.e. B.O., H.M.N., Ł.Z., the claimant W.D. as well as A.F. and the journalists.
18.  Ł.Z., an employee of the pharmaceutical company, testified that the meetings had been devoted to M.S.D. Inc.’s possible involvement in the project of setting up a network of osteoporosis clinics in Poland. This involvement, according to the expectations of B.O.’s company, was to be limited to making a payment of approximately PLN 400,000, i.e. approximately between USD 100,000 and USD 150,000, to a given bank account. According to Ł.Z.’s testimony, this proposal was not accepted by M.S.D. Inc., whose participation in the project was thereby terminated. Ł.Z. further testified that while indeed the participants had also talked about the possibility of placing a certain drug on the list of refunded drugs, there had been in fact no causal link between the two matters.
19.  H.M.N., the finance director of the pharmaceutical company, testified that he had met W.D. and B.O. to discuss the same project. W.D. had introduced himself as a person representing a group which had been interested in the project. According to H.M.N., he expressed his surprise that the representative of the Government would be interested in the project involving a drug which had not been placed on the list of refunded drugs. At that point W.D. had stated that he would look into this issue. H.M.N. further stated that from the company point of view “there had been no connection between the project and the placement of the drug on the list”. The pharmaceutical company refused to participate financially in the project on the terms proposed by W.D. and B.O.
20.  A.F., the chief executive of the company, testified that the participants at the meetings had discussed the project of setting up a network of clinics treating osteoporosis. He was informed by two of his employees present at the meeting that W.D. had proposed to the company to invest a certain amount in that project. According to A.F., W.D. had also discussed the issue of placement of the company’s drug used for treating osteoporosis on the list of refunded drugs. He considered that the two issues, namely the financial investment in the project and the placement of the company’s drug on the list were interconnected. He understood, basing himself on the information from his employees, that if the company had decided to invest in the project then the placement of its drug on the list of refunded drugs would have been possible.
21.  B.O., director of a private osteoporosis clinic and friend of W.D., stated that the participants had discussed osteoporosis and the setting up of a network of clinics treating that illness. According to B.O., Ł.Z. had requested a meeting with W.D. and he had arranged it accordingly. B.O. denied that the participants at the meeting had discussed the issue of the placement of the company drug on the list of refunded drugs or that W.D. had demanded a bribe.
22.  By a judgment of 17 June 2005 the Warsaw Regional Court dismissed W.D.’s claim.
23.  The court established that in their article the applicants, besides their critical assessment of the Ministry of Health’s decision-making process concerning the registration and placement of drugs on the list of refunded drugs, described the events related by the anonymous representatives of the Polish branch of one of the large pharmaceutical companies. Their article was also based on the information received from A.N. (the Deputy Minister of Health), B.O., W.D. and the statement received from the Minister of Health. The assertions of the representatives of the pharmaceutical company were confronted with the statements of W.D. The journalists further presented W.D.’s professional and political career. In the article they pointed to specific contradictions and ambiguities in W.D.’s account of his meetings with the representatives of the pharmaceutical company. The article presented the claimant who was a high-ranking official in a negative light, but the readers were offered two versions of the relevant events and could make their own assessment of it. It was undisputed that W.D. had met twice in restaurants with H.M.N. and Ł.Z., the representatives of the American pharmaceutical company M.S.D. Inc. and introduced himself as the Head of the Private Office of the Minister of Health.
24.  The Regional Court further established that W.D. assisted at the meetings with B.O., his friend and the owner of the Mokotów Osteoporosis Centre. The participants discussed the possibility of a joint undertaking of the two companies in developing a network of osteoporosis clinics in Poland. The pharmaceutical company was interested in the placement of its drug for the treatment of osteoporosis on the Ministry’s list of refunded drugs. The parties discussed the organisational and financial details of the joint project as well as the issue of the pharmaceutical company’s difficulties in securing the placement of its drug on the list. Eventually, the joint project failed because the pharmaceutical company had not accepted the financial terms of the Polish company. A.F. and H.M.N., respectively the chief executive and finance director of the Polish branch of M.S.D. Inc. approached the press and informed the journalists that W.D. had demanded from their company a bribe in exchange for the placement of the company’s drug on the list.
25.  Two journalists, M. Solecka, who specialised in the public health issues, together with A. Stankiewicz became interested in the story. Before publishing the article, the journalists had spoken to A.F., H.M.N., B.O. and W.D. as well as high-ranking officials in the Ministry of Health in order to verify their information. A.F., the chief executive of the pharmaceutical company was considered by the journalists as a reliable source, especially as he had undertaken to confirm his story before the court if necessary. The court further noted that the version of events presented to the applicants by A.F. and H.M.N. had been consistent, while the version presented by W.D. had been varying and proved inaccurate upon verification. Faced with divergent accounts, the journalists decided to present two versions of the meetings between the parties. M. Solecka had observed for years irregularities in the process of placement of drugs on the list of refunded drugs and received anonymous information about them.
26.  The Regional Court considered that the testimonies of A.F., H.M.N. and Ł.Z. in respect of the course of the meetings were in principle similar. Witness Ł.Z. stated that the claimant (W.D.) had undertaken to check the list of refunded drugs and the chances of placing on it the drug manufactured by M.S.D. The parties had also discussed the need for the pharmaceutical company to make a quick decision about the transfer of money to an indicated bank account to which the finance director had firmly objected and thus M.S.D. pulled out of the joint project.
27.  The Regional Court found that part of the article contested by W.D. had corresponded to the version of events presented to the journalists by the directors of M.S.D. In view of the consistency of the directors’ account and the lack of coherent explanation as to the course of the meetings by W.D. and B.O. the journalists could consider the former as a reliable source. Moreover, the court expressed a view that the mere fact of W.D.’s participation in the business meeting between two companies, during which he had introduced himself as a Ministry official, had placed him in an ambiguous and awkward situation and lent credibility to the account of the directors of M.S.D. In these circumstances the Regional Court held that the impugned article had been based on reliable and verified information. The accounts of the representatives of the M.S.D. and of W.D. had been accurately reported. It was further no doubt that the article had dealt with issues of public interest, namely corruption.
28.  The court held that the article had infringed the personal rights of W.D. However, it found that the applicants’ conduct had not been unlawful within the meaning of Article 24 of the Civil Code read in conjunction with the relevant provisions of the 1984 Press Act because the journalists had shown sufficient diligence in gathering and publishing the information and acted in accordance with the professional ethics. It noted that the information that the applicants had had at their disposal before the publication of the article had been sufficiently reliable to justify the allegation made in the article. Lastly, the court noted that the journalist had not been required to prove the truthfulness of their allegations in order to demonstrate the lack of unlawfulness in their actions.
29.  W.D. appealed against the judgment and dropped his pecuniary claims. He argued that the journalists had largely based their conclusions on the version of events presented to them by A.F., and that the latter had deliberately sought to disparage him with a view to having the drug manufactured by M.S.D. Inc. placed on the list of refunded drugs. He further argued that A.F. had not in fact participated in the meeting at which the alleged offer of a bribe had been made, and thus his version of events could not be regarded as reliable. He further contended that while preparing the article the journalists had failed to question Ł.Z., who had served during the meeting as an interpreter of his conversations with H.M.N. He stressed that he spoke no English and H.M.N. did not speak or understand Polish, making any direct conversation between them impossible.
30.  By a judgment of 11 October 2006 the Warsaw Court of Appeal allowed the appeal.
31.  The Court of Appeal concurred with the lower court that W.D.’s personal rights had been infringed. It noted that the allegation levelled against the claimant that a high-ranking public official had demanded a bribe for securing a placement of the drug on the list of refunded drugs amounted to a criminal offence. The allegation that a person had committed or attempted to commit an offence amounted to a flagrant violation of one’s reputation.
32.  The Court of Appeal, leaving aside the question of the truthfulness of the allegation raised, concentrated its analysis on whether the journalists had respected the special diligence required of them under the Press Act in order to rebut the presumption of unlawfulness of the infringement of W.D.’s personal rights. It referred to the case-law of the Supreme Court (the Supreme Court’s judgments of 14 May 2003, case no. I CKN 463/01, and of 18 February 2005, case no. I CKN 463/01) which held that in order to rebut the said presumption of unlawfulness it was sufficient to establish that a journalist had acted with requisite diligence, and that it was not necessary to prove the truthfulness of the allegations raised. Contrary to the lower court, the Court of Appeal found that the journalists had failed to observe special diligence in the preparation of their article.
33.  It noted, first and foremost, that while preparing their article the applicants had failed to question Ł.Z., while the latter’s version of events had been crucial, given that W.D. and H.M.N. had relied on his interpretation to understand each other. The Court held that the journalists’ failure to acquaint themselves with Ł.Z.’s version of events – given that there had been only four participants at the meeting – amounted to a cardinal error and clearly demonstrated that they had failed to observe due diligence. The court further noted that the version of events presented by A.F., the company’s chief executive, to the journalists had been essentially based on summary information concerning the meetings, given to him by H.M.N. and Ł.Z., and thus might have been inaccurate due to possible translation mistakes. The journalists had not attempted to confirm whether the latter’s version of events had corresponded to the version of Ł.Z., but on the other hand they had spoken to persons (certain members of parliament) who had not had much in common with the issues raised in the article.
34.  The Court of Appeal observed that the reliability of A.F. was open to doubt. In this regard, it noted that the chief executive had clearly not wished that the journalists speak to Ł.Z. and that he had contacted the press only a few months after the impugned events had occurred. Furthermore, the list of refunded drugs for 2003 was only published in January of that year, while Ł.Z. had met the claimant in December 2002, on the instructions of A.F., to discuss the placement of the company’s drug on the list. The court noted that it could be concluded from that that if the company’s drug had been included on the Ministry’s list, then A.F. would not have disseminated the information which was the subject of the article.
35.  The Court of Appeal also held that the first-instance court had erroneously assessed the testimonies of certain witnesses and concluded that the information that the applicants had had at their disposal before publication was insufficient for making the allegations of corruption against W.D. It was confirmed that B.O. had met with the representatives of M.S.D. to discuss the project of the network of osteoporosis clinics. This project was at the early stage but it was agreed that the financial contribution of M.S.D. would be in the region of 1-1.5 million USD. The parties did not agree on the form of this contribution. M.S.D. envisaged it in the form of supplying equipment and premises but did not accept the proposal of the Polish company to make a transfer of the above amount to an account of some unspecified company. According to the Court of Appeal it was only A.F. who had linked the demand to make the above payment with the issue of the list of refunded drugs. Witness H.M.N. stated that “there had been no connection between the project concerning osteoporosis clinics and the placement of the drug on the list”, while Ł.Z. denied that there had been any correlation between the two issues. Ł.Z. asserted that neither the claimant nor anyone else had proposed to have the drug placed on the list in exchange for a bribe. Accordingly, the court found that the witnesses’ testimonies did not confirm the truthfulness of the allegations made by the journalists.
36.  In conclusion, the Court of Appeal held that the applicants’ conduct had been unlawful within the meaning of Article 24 of the Civil Code read in conjunction with the relevant provisions of the 1984 Press Act and infringed the claimant’s reputation and trust that was necessary in the exercise of his public duties.
37.  The applicants were ordered to publish an apology in their newspaper, which the Court of Appeal worded as follows:
“M.S. and A.S. [the first and second applicants], the authors of the article “Drugs for millions of dollars”, published in the newspaper “Rzeczpospolita” of 12 May 2003, as well as the publisher of this newspaper, Presspublica sp. z o.o., hereby declare that by including in the article the statement to the effect that W.D. had offered to place a drug on the Minister of Health’s list of refunded drugs in return for a multi-million bribe, they infringed W.D.’s personal rights by exposing him to a loss of good reputation and trust necessary to pursue his public and professional activity and for that they present their apology.”
38.  The applicants were also ordered to pay PLN 4,400 (1,100 euros (EUR)) in court fees and to reimburse the costs of PLN 6,230 (EUR 1,550) to W.D.
39.  The applicants lodged a cassation appeal against the judgment. They argued, inter alia, that their conduct had not been unlawful, as they had observed due diligence in gathering the material for their article and the information obtained from the persons that they had questioned before publication had been sufficiently reliable. Further, they submitted that it was their right and duty as journalists to publish an article about the issue of corruption and that they had acted in the public interest.
40.  By a judgment of 13 April 2007, the Supreme Court dismissed the cassation appeal, holding that the applicants’ conduct had in fact been unlawful. In doing so, the Supreme Court based its findings largely on the conclusions reached by the Warsaw Court of Appeal. It concurred with that court that the evidence in the case, in particular the testimonies of the witnesses, had not made it possible to establish that in the course of the negotiations concerning investment in osteoporosis clinics the claimant or anyone else had demanded a bribe with a view to securing the placement of the drug manufactured by the company on the list of refunded drugs. The Supreme Court’s judgment was served on the applicants on 20 June 2007.
41.  Following the publication of the article, on 22 May 2003 the Warsaw Appellate Prosecutor Office (Department for the Organised Crime) opened an investigation in the case concerning a bribe-taking by a government official.
42.  On 17 March 2004 the Warsaw Appellate Prosecutor charged W.D. with bribery in that W.D., as a public official, had demanded not less than 1.200.000 PLN from the pharmaceutical company in order to finance a network of osteoporosis clinics. The prosecutor alleged that W.D. jointly with the representative of the Mokotów Osteoporosis Centre had negotiated the project with the M.S.D. He had also participated in the registration in July 2002 of the limited liability company “Woman +50” which was subsequently intended to manage the network of clinics.
Secondly, W.D. was charged with procurement fraud. The prosecutor alleged that W.D., as a deputy Chairman of the Board of the Mazowiecki Health Insurance Fund and the chief executive of the company “Woman +50”, had submitted false documents to the Mazowiecki Health Insurance Fund in order to secure contracts for the company. The prosecutor imposed preventive measures on W.D., namely a ban on leaving the country and ordered him to put up bail of PLN 200,000.
43.  On 17 January 2007 the Warsaw Appellate Prosecutor discontinued the proceedings against W.D. in respect of the charge of bribery for lack of sufficient evidence that he had committed the impugned offence.